The Department of Justice this afternoon released the following press statement, which confirms what I wrote last evening:

1. The NSA electronic surveillance activities -- the "program" -- were first given the moniker "Terrorist Surveillance Program" in early 2006, when the Administration was defending the program to the public, a defense that included assurances that "the program" had been briefed to congressional leaders since 2001.

2. After March 2004 -- that is, after Jack Golddmith, et al., threatened to resign if the program continued as it had been operating since 2001 -- the program consisted of interception of communications that were both (1) "international" (in that at least one party was not in the U.S.) and (2) that involved at least one party who was thought to be "an agent or member of al Qaeda or an affiliated terrorist organization."

3. Since March 2004, there has not been disagreement within DOJ about the legality of the program as so limited. (Which is not to say it was legal -- it wasn't.)

4. But there was huge, unprecedented dissent within DOJ about the legality of the NSA program in early 2004, when the "program" did not satisfy one or both of those conditions -- that is, when the program intercepted wholly domestic communications and/or communications where no party was even loosely affiliated with Al Qaeda or "affiliated terrorist organizations." {For more detail on how the program might have been much broader before the Goldsmith/Comey resistance, see here.)

5. DOJ would also have you believe that the Attorney General never intended to suggest otherwise to Congress. That's ridiculous, of course, as Spencer Ackerman and Paul Kiel explain at length.

But it's also much less important than the merits. What Congress and the public should be investigating now is not so much what the meaning of "program" was in the Attorney General's hamfisted attempts to deceive the legislature since January 2006, but instead just what the NSA (and the FBI) were up to, both between 2001 and March 2004, when the program must have been unthinkably broad and unlawful; and also from 3/2004 to January 2007, during which period it was "limited" in the two respects noted above. What were the legal justifications and theories for both versions of "the program"? Those are the questions most worthy of Congress's (and the public's) attention. It's time for Jay Rockefeller, Jane Harman, et al., to step up and explain to the public -- without revealing secret NSA technical capabilities, of course -- just what has been going on all these years, including what members of Congress knew, and when, on the facts and the law. Gonzales, et al., have been able to sustain this run-around as long as they have only because no one else will speak up. If it weren't for Comey's brave testimony, the whole issue would have died out long ago . . .

Confusion is inevitable when complicated classified activities are discussed in a public forum, where the greatest care must be used not to compromise sensitive intelligence operations. The Administration first used the term “Terrorist Surveillance Program” in early 2006 to refer publicly to a particular intelligence activity that the President publicly acknowledged and described in December 2005 -- that is, the NSA’s targeting for interception international communications coming into or going out of the United States where the NSA has reasonable grounds to believe that a party to the communication is an agent or member of al Qaeda or an affiliated terrorist organization. That is the only intelligence activity that the Attorney General meant when he used the phrase “Terrorist Surveillance Program.”

When Members of Congress and the public, after that activity was disclosed, questioned whether it was lawful, the Attorney General noted that there had not been serious disagreements raised by the Justice Department about the lawfulness of that particular activity -- i.e., the interception of international communications of al Qaeda. That statement was accurate. There was not a disagreement between the Justice Department and the White House in March 2004 or any other time about whether there was a legal basis for that particular intelligence activity.

Indeed, the white paper that the Department sent to Congress on January 19, 2006 reflects and is consistent with the legal position taken by the Department in 2004, including under Mr. Comey's tenure, concerning the legal basis for that activity. The disagreement that occurred in March 2004 concerned the legal basis for intelligence activities that have not been publicly disclosed and that remain highly classified.

The May 17, 2006 letter from Director of National Intelligence Negroponte is consistent with the Attorney General’s testimony. The letter indicates that the March 10, 2004 meeting included a briefing on the activity we have called the “Terrorist Surveillance Program,” without indicating whether other intelligence activities were discussed.”

I've read that the DOJ should not release preliminary discussions or potential decisions. Probably a good idea, but once a program has been trimmed because it was illegal, should these trimmed parts enjoy the same status as national security secrets as is give to the actual program? Can actual illegal activity be protected? Even if just in the abstract: what was allowed, who needs actual violations?

Looks like my "educated guess" posted this morning was pretty spot on with the actual facts.

What Congress and the public should be investigating now is not so much what the meaning of "program" was in the Attorney General's hamfisted attempts to deceive the legislature since January 2006, but instead just what the NSA (and the FBI) were up to, both between 2001 and March 2004, when the program must have been unthinkably broad and unlawful.

As Rep. Harmon's disclosure yesterday demonstrates, Congress was well aware of and approved of the multiple operations run by the NSA.

It's time for Jay Rockefeller, Jane Harman, et al., to step up and explain to the public -- without revealing secret NSA technical capabilities, of course -- just what has been going on all these years, including what members of Congress knew, and when, on the facts and the law.

Are you kidding? Why exactly would Rockefeller and Harmon tell their anti military base that they either rubber stamped or actively supported all the operations run by NSA, including the one to which DOJ objected.

If it turns out that the congressional intelligence committee Dems fully supported the NSA operations, would you call for their removal from Congress as you call for the President's impeachment? Hell, would you even stop voting for them?

The GOP is hitting back by calling for the reform of FISA. Apparently, our intelligence services are wasting their time and resources going to the FISC asking for warrants to conduct surveillance of calls between foreign terrorists where both parties are on foreign soil, but whose calls are routed through a US hub.

It was bad enough that FISA requires warrants to surveil calls by agents of foreign groups who have already invaded the US when the 4th Amendment requires no warrants, but now its antiquated provisions require warrants for completely foreign calls.

Unsurprisingly, the Dems on the intelligence committees do not think that this problem is worthy of their immediate intention. After all, the Dems have a "rogue" AG to ruin.

Intelligence work involves sifting through a mass of data looking for the one key piece of information that discloses the intent of the enemy. In this context, when a program does not meet the criteria that "the NSA has reasonable grounds to believe that a party to the communication is an agent or member of al Qaeda or an affiliated terrorist organization", a sensible assumption would be that it was based on a looser criteria. There might instead be reasonable grounds to belive that some (but not all) of the conversations intercepted involved al Qaeda agents, and as a result an individual conversation only might involve a member of al Qaeda.

A variety of criteria might range from intercepting 0 messages for which you are absolutely certain, to intercepting 10 messages where you have reasonable grounds (with say only 1 false positives), or 1000 messages with expectations that only 20 involve al Qaeda business. If the 20 messages prevent another 9/11 and save thousands of lives, I don't much care that 980 messages were scanned and discarded. A certain percentage of valid search warrants yield no evidence of a crime, and it seems reasonable that when dealing with a foreign military at war with the US planning activies that involve mass casualties that you apply a looser filter than would apply to catching some low level dope dealer. What is the required level of certainty? What is an acceptable rate of false positives? These are the kinds of questions that the DOJ would have to answer, and the difference between a program everyone agreed to and some prior controversial program might have been very small. It may only have been a change of wording that was very important to lawyers but had no actual effect on the NSA analyists.

Are you kidding? Why exactly would Rockefeller and Harmon tell their anti military base that they either rubber stamped or actively supported all the operations run by NSA, including the one to which DOJ objected.

# posted by Bart DePalma : 8:59 PM

You are among the most amoral of shitheads, outside the Bushit criminal enterprise -- if you are -- I've encountered. To accurately characterize you as intellectually dishonest is only faultworthy because it includes the term "honest".

I, and doubtless many others, are fed uup with your foul-mouthed slurs and smears against those who hold different -- law-abiding -- views which you detest, and about which constantly lie:

I come from a military family, so have no apologies to make to the likes of scum like you. I opposed US involvement in Vietnam because it was wrong -- AS A POLICY. Attacking that policy was not "attacking the troops," despite the foul-mouthed anti-military liars who uttered that smear at the time.

The same foul-mouthed anti-military hatefulness is recycled by a gang of chickenhawk thugs who endeavor to palm themselves off as "more macho than thou" and "more patriotic than thou," demanding that everyone else must "support the troops" -- because suck-ass hypocritical punks such as you aren't about to do so.

In your face, from two ACTUAL veterans who don't have their heads so far up Bushit's colonoscopic rectitude as to be concertedly and deliberately blind to the harm inflicted on the troops by insufferable assholes such as you, and the militarist chickenhawks you support and defend -- primarily but not only Bushit and Cheney:

. . . . We should be under no illusions. The president’s Executive Order, for all its slippery weasel language, is intended to sanction torture and to give persons acting under color of authority of the United States the right to torture those held in their power. Like Abu Ghraib, Bagram and Guantánamo, it constitutes another enormous stain on the honor and reputation of the United States.

Today, two conservative Republicans step forward to call this just what it is: a war crime. They are General P.X. Kelley, who was Ronald Reagan’s Commandant of the Marine Corps, and Robert F. Turner, a lawyer who served in a senior position in the Reagan White House. Their op-ed is run in the Washington Post and it merits being read start to finish.

Last Friday, the White House issued an executive order attempting to “interpret” Common Article 3 with respect to a controversial CIA interrogation program. The order declares that the CIA program “fully complies with the obligations of the United States under Common Article 3,” provided that its interrogation techniques do not violate existing federal statutes (prohibiting such things as torture, mutilation or maiming) and do not constitute “willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency.” In other words, as long as the intent of the abuse is to gather intelligence or to prevent future attacks, and the abuse is not “done for the purpose of humiliating or degrading the individual” — even if that is an inevitable consequence — the president has given the CIA carte blanche to engage in “willful and outrageous acts of personal abuse.”

It is firmly established in international law that treaties are to be interpreted in “good faith” in accordance with the ordinary meaning of their words and in light of their purpose. It is clear to us that the language in the executive order cannot even arguably be reconciled with America’s clear duty under Common Article 3 to treat all detainees humanely and to avoid any acts of violence against their person. In April of 1793, Secretary of State Thomas Jefferson wrote to President George Washington that nations were to interpret treaty obligations for themselves but that “the tribunal of our consciences remains, and that also of the opinion of the world.” He added that “as we respect these, we must see that in judging ourselves we have honestly done the part of impartial and rigorous judges.”

To date in the war on terrorism, including the victims of the Sept. 11 attacks and all U.S. military personnel killed in action in Afghanistan and Iraq, America’s losses total about 2 percent of the forces we lost in World War II and less than 7 percent of those killed in Vietnam. Yet we did not find it necessary to compromise our honor or abandon our commitment to the rule of law to defeat Nazi Germany or imperial Japan, or to resist communist aggression in Indochina. On the contrary, in Vietnam — where we both proudly served twice — America voluntarily extended the protections of the full Geneva Convention on prisoners of war to Viet Cong guerrillas who, like al-Qaeda, did not even arguably qualify for such protections. The Geneva Conventions provide important protections to our own military forces when we send them into harm’s way. Our troops deserve those protections, and we betray their interests when we gratuitously “interpret” key provisions of the conventions in a manner likely to undermine their effectiveness. Policymakers should also keep in mind that violations of Common Article 3 are “war crimes” for which everyone involved — potentially up to and including the president of the United States — may be tried in any of the other 193 countries that are parties to the conventions.

In a letter to President James Madison in March 1809, Jefferson observed: “It has a great effect on the opinion of our people and the world to have the moral right on our side.” Our leaders must never lose sight of that wisdom.

To General Kelley and Mr. Turner, thanks for a message well delivered. Or as my nautical friends say, “bravo zulu.”

The committed domestic enemies of my country -- and of its military -- are those who are the first to wrap themselves in the flag, brey for blood -- so long as that blood is bled by any but themselves -- and smear all who hold views different than theirs -- exactly as was the case in WW II Germany. You support and defend nothing more or other than hatred and bigotry against all that is decent, and you don't care who gets trampled under the jack-boots of your zeal to destroy that which is the opposite of evil -- including the military that you, with so obvious and constant deceit, purport to be about protecting from non-existent "attacks".

More than one General -- actual veterans, not lying fakes such as you -- has made the point clear: No one is more opposed to war than those -- the military -- who have actually seen and experienced it. I add that is only those who don't support the troops who are zealous for throwing them away in wars begun and cheered by hatefilled chickenhawks who are at no risk of having to put their courage with others' lives where their mouths are.

It is only the cowardly bullies, the contemptible chickenhawks, hiding behind the military, and pushing it to its doom, who proclaim their mighty faith that war is glorious -- but only for those who refuse to serve, yet attack those who attack the policies which ineluctibly and inevitably lead to death, and the destruction of the military.

You, "Bart," are no more fit for civilized company than are such perverse architects of evil Tojo and Hitler, Mao and Stalin, and such as Cheney-Bushit-Gonzales-Yoo and Saddam Hussein. If there is a Hell, it was constructed and furnished out specifically for your kind of supreme hypocrite: those who will sacrifice the lives of others behind the claim that they are instead defending those lives.

"The Dems briefed on the TSP in 2004 and before sound slightly hysterical because Gonzales has revealed that they essentially rubber stamped a program which DOJ successfully fought and changed. This will not sell very well with their base, to whom the Dems (Rockefeller especially) have misleadingly implied that they were opposed to or questioning the TSP."

Bart,You are absolutely right about the Dems that went along and are now doing a CYA. And the Republicans too that went along. Our elected officials! Congressional leaders of both parties were willing to throw civil rights under the bus as was the White House and they hoped this would all work if it was kept secret. I called Jane Harmon on this kind of stuff at a conference in 2005 at Duke.

That is why it is excellent that the NYT brought this out so we can go through the layers of venality at work here. Transparency helps us see that we not only have Al-Qaeda to worry about but elected leaders who are not willing to protect us from a Big Brother government - while they seek our vote.

I think this should be used against these particular candidates (Dems or Republicans) to get them thrown out of office the next time they come up for reelection, or to force them to resign in dishonor. I have to think through whether criminal prosecutions could happen.

Gonzales on the other hand it seems clear has perjured himself and a jury ought to get a chance to decide if that is true. Tired of listening to his crap.

Gonzales on the other hand it seems clear has perjured himself and a jury ought to get a chance to decide if that is true. Tired of listening to his crap.

Best,Ben

# posted by Benjamin Davis : 9:51 PM

FBI Director Mueller not only verified Comey's testimony but also directly contradicted Gonzales. And, he dropped a bombshell: he made notes after the hospital encounter. Those notes should make for an interesting read. Perhaps the paper on which written is made from hemp, thus modifiable into rope noose with Gonzales' name on it.

Bart:Are you kidding? Why exactly would Rockefeller and Harmon tell their anti military base that they either rubber stamped or actively supported all the operations run by NSA, including the one to which DOJ objected.

Please. It's painfully obvious that the White House represented to the Gang of Eight that the "activities" were the same ones that had been approved originally, when it's now obvious that the WH expanded the scope of the program significantly. It wasn't until OLC's "internal reevaluation" that made it clear that the WH had gone far beyond the statutory mandate that Comey and Ashcroft demanded that it be reined in, but the Gang of Eight clearly wasn't privy to any of that. They were just told that they were reapproving the same program.

Seriously, this isn't that hard. The White House has already admitted that they asked if they could get a FISA amendment to do the stuff they wanted to do; the Congressional leaders said no chance. What reason would they have to think that the WH just came up with a new theory and went ahead with the activities that the Congressional leaders had specifically rejected? Hell, if Bush's own DoJ had to do an extensive "internal reevaluation" to figure out what the hell they were actually doing, why in the world would the Gang of Eight be told?

I will be more specific: I don't think that Harman, Rockefeller, or the others on the Gang of Eight were ever told about the "other activities" -- at least, not after they were asked about them in the context of a FISA amendment and said "no way."

If you read the statements carefully, it's apparent that what happened is that the Gang of Eight was told that Comey had an objection to "the program." Since it's been repeatedly stated that, "The legal underpinnings of the program were never discussed," there's no earthly way that they could have been told about the OLC's findings. Therefore, what was represented to them is that Comey had decided that the program as they understood it (i.e. the "TSP" -- not the "other activities") -- was illegal, but that it should be continued for the time being. They clearly weren't told that the program had expanded and what Comey was actually trying to do was rein it in. (Remember, Rockefeller and Harman have repeatedly said that they were only told about "one program.") Comey had no way of telling them that without declassifying information.

However, what the WH wanted from the Gang was leverage to get Comey and Ashcroft to continue the entire program -- a veil of Congressional authority used to get the DoJ to provide the veil of internal Executive legitimacy (remember, the basis of the OLC's objection was that the program was operating outside its mandate; if they could be convinced that Congress was somehow OK with it, they might have assented). Of course, that was just a lie -- the WH was just trying to play the two groups off one another. (It's also clear that the Gang was never told that their "consensus" would be used to try to strongarm the DoJ -- Daschle has said point-blank that he's "quite certain that at no time did we encourage the AG or anyone else to take such actions.") However, Comey didn't buy the ploy -- or at least, he was warned that Card and Gonzales were going to go to the hospital to get Ashcroft to sign off on the program -- and intervened.

Not only does this story make all the various statements add up, it explains why Feingold and Whitehouse -- who are on the Intelligence Committee and now have some idea of just what the "other activities" extended to -- keep pressing Gonzales on this point. But since they can't talk about the still-classified "other activities" and Gonzales knows it, they never get anywhere. Look at the hearings. Feingold has brought it up every time. This last time around he said "I believe your testimony is misleading at best," but that he "could not elaborate in an unclassified hearing." Whitehouse agreed. They're trying to drop hints here.

Again, this quote from Gonzales in the Hayden hearing pretty much lays it all out:We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

--"We felt the authorities were there" is code for, "We got John Yoo to come up with a theory that would let us do what we wanted, even though Congress told us we couldn't." When the new head of the OLC shot the theory down, they needed a new strategy -- but it's clear that Congress was never in the loop about this stuff; or rather, when they were, they specifically rejected it. The "Gang of Eight" meetings were a sham.

I will be more specific: I don't think that Harman, Rockefeller, or the others on the Gang of Eight were ever told about the "other activities" -- at least, not after they were asked about them in the context of a FISA amendment and said "no way."

If you read the statements carefully, it's apparent that what happened is that the Gang of Eight was told that Comey had an objection to "the program." Since it's been repeatedly stated that, "The legal underpinnings of the program were never discussed," there's no earthly way that they could have been told about the OLC's findings

This take assumes that the members of the Intelligence Committees are ignorant naifs without any knowledge or resources of their own to arrive at their own conclusions as to whether the multiple NSA operations under the umbrella of a program which will be later marketed as the TSP were both legal and good policy. The Intelligence Committees have been operating for a generation now, are well aware of FISA and have their own resources to determine what is legal or not.

It appears from their own admissions that the Intelligence Committee members of both parties knew of the existence of the various NSA operations, unanimously approved them and did not challenge their legality.

Now that it has been confirmed that the NYT did not reveal all the NSA operations to al Qaeda and everyone else and the operation which was the subject of the debate between DOJ and the WH was not disclosed, we are engaging in rank speculation to claim that we know whether this undisclosed operation was legal or illegal.

We have no idea what the disputed program entailed.

We have no idea what issues DOJ had with the program.

We have no idea how those issues were resolved.

The speculation we all engaged in when this story originally broke was wrong because we erroneously assumed that the issue concerned the NSA program blown by the NYT. I would suggest that we will be made to look similarly foolish after some future disclosure if we engage in further speculation with even less evidence.

So since we don't know what happened, with whom, and who knew what when, the only reasonable response is to open up the books, disclose what the programs were and their (quasi- or il- or) legal justifications were, so that we can have an honest debate, and not have our country's decisions made by secretive administration and a small number of legislators who must know better than the rest of us.

Bart: The Intelligence Committees have been operating for a generation now, are well aware of FISA and have their own resources to determine what is legal or not.

It appears from their own admissions that the Intelligence Committee members of both parties knew of the existence of the various NSA operations, unanimously approved them and did not challenge their legality.

As I have said before, I am not willing to give congressional leaders a pass on all this. But Bart's comment above severely distorts what we know about the structure of the briefings that occurred.

To begin with, the briefings did not include all the members of the Intelligence committees, but only the Gang of Eight. Further, these eight legislators were not there to "approve" anything, but merely to be briefed on the executive branch's fait accompli. In addition, the eight were forbidden to discuss the briefed material with committee members or with staff.

In any event, nothing in the Constitution or statute authorizes eight legislators, meeting in secret with administration officials, to authorize violation of FISA or other statutes, or the Constitution itself.

So there is no basis to say "Intelligence Committee members of both parties knew of the existence of the various NSA operations [and] unanimously approved them."

If the leaders thought something was illegal, what were they supposed to do, short of going public? They were not even allowed to raise such questions within the closed doors of their own committees. There was a written objection, a letter from Rockefeller to Cheney in 2003, that has since been revealed. (I do think it could have been stronger.)

Again, from what we know, I am not convinced that congressional performance on this matter in either party has been exemplary. And I think the Hill leadership, politically embarrassed, even today avoids an aggressive investigation of the illegal surveillance itself. But let's not misstate the facts.

This take assumes that the members of the Intelligence Committees are ignorant naifs without any knowledge or resources of their own to arrive at their own conclusions as to whether the multiple NSA operations under the umbrella of a program which will be later marketed as the TSP were both legal and good policy.

While I wouldn't have put it in quite so derogatory and inflammatory terms, that does seem to be more in line with Senator Rockefeller's letter to Vice President Cheney (in which he specifically notes his inability to evaluate or endorse the intelligence activities owing to his lack of knowledge and restricted access to staff and other resources) than is your assertion that the intelligence committee members had adequate information and resources to fully evaluate the legality of the intelligence activities and that they gave those activities their endorsement.

Face it, Bart. Some people will deny we are at war, until someone they know gets killed by terrorists; they want full disclosure to the enemy and (evidently) for the spying to stop. It's useless arguing with them.

Even if I lost someone to terrorists, and I have many friends in NYC who did, I will not agree that our war in Iraq is a war on the people who committed that atrocity.

To be at war with troops, we must face troops. We do not. We are fighting an enemy who seeks to attack us asymetrically to make up for the fact that they have no troops, nor could they defeat us militarily if they did.

Consider what has transpired since 9/11. Our President has used it as an opportunity to move America closer to the type of police state that exists in Saudi Arabia and the Middle East. America is now a country paralyzed by fear.

I would say the Bush Administration has handed Bin Laden a greater victory than he could have ever hoped for.

So since we don't know what happened, with whom, and who knew what when, the only reasonable response is to open up the books, disclose what the programs were and their (quasi- or il- or) legal justifications were, so that we can have an honest debate, and not have our country's decisions made by secretive administration and a small number of legislators who must know better than the rest of us.

Are you actually thinking this through?

Revealing all of our NSA programs to the enemy during a war would have to rank as among the most bone headed ideas in military history.

Maybe we can also inform the enemy ahead of time of all the other military operations planned against them while we are at it.

Face it, Bart. Some people will deny we are at war, until someone they know gets killed by terrorists; they want full disclosure to the enemy and (evidently) for the spying to stop. It's useless arguing with them.

# posted by Charles : 11:20 AM

Charles, you may be a sniveling coward, but I'm not. I value that my freedom is protected from scum like you much more than I fear for my safety from a few terrorists.

Herr Bart trots out the war canard. We are at war with Al Queda. OBL is the leader of Al Queda. Bush let OBL get away and reestablish his base in Peshawar.

Herr Bart also assumes that OBL is not already taking great care to hide his financial tracks. I hear he's conducting transactions in diamonds and opium.

As for whether or not discussing Herr Busch's illegalities is boneheaded, I would argue that is no less bonheaded than Herr Busch's decision not to work with a Republican controlled Congress to make sure his spying plans were legal.

Instead, Herr Busch chose to rely on a legally dubious opinion as the foundation for a national effort to protect America. Choosing to rest this efort on dubious grounds, Herr Busch boneheadedly chose to threaten the very program he claims is essential to our protection because Herr Cheney wanted to expand Executive Privilege thus putting power over the prudent protection of the country.

Charles,Should someone I know personally be killed by terrorists, my reaction wouldn't be now I understand, go ahead and torture them and give Bushits dictatorial power. The neocon experiment has been a failure and a laughing stock of the world.

Bart: The Intelligence Committees have been operating for a generation now, are well aware of FISA and have their own resources to determine what is legal or not.

It appears from their own admissions that the Intelligence Committee members of both parties knew of the existence of the various NSA operations, unanimously approved them and did not challenge their legality.

As I have said before, I am not willing to give congressional leaders a pass on all this.

Hell, I am willing to credit all members of the Gang of 8 with a great deal of common sense in supporting intelligence gathering against the enemy. In stark contrast to that reasonable approach, the Dem back tracking since 2005 rather than leading and educating their base on the paramount necessity of intelligence gathering in an irregular war has been one large profile in political cowardice.

But Bart's comment above severely distorts what we know about the structure of the briefings that occurred.

To begin with, the briefings did not include all the members of the Intelligence committees, but only the Gang of Eight. Further, these eight legislators were not there to "approve" anything, but merely to be briefed on the executive branch's fait accompli.

I made a poor choice of words. Congress does not have the power to "approve" or "disapprove" Executive decisions on how to deploy intelligence gathering against a foreign foe. It would have been more accurate to state that the "Gang of 8" supported the continuation of the various NSA operations under their oversight function.

In addition, the eight were forbidden to discuss the briefed material with committee members or with staff.

Congress is not a potted plant. Congress could have obtained clearance for their own attorneys or demanded a briefing from the Executive on the legal basis on which it was proceeding. If the Executive balked, there is always the power over NSA's budget and several other pressure points.

Congress is the most powerful branch in the government. I find it incredible that folks argue that they are somehow helpless.

So there is no basis to say "Intelligence Committee members of both parties knew of the existence of the various NSA operations [and] unanimously approved them."

Harmon revealed that she knew about the various NSA operations when she was the minority chair of the House Intelligence Committee. There is no reason to believe that the rest of the bipartisan "Gang of 8" were not briefed as well.

If the leaders thought something was illegal, what were they supposed to do, short of going public?

You can threaten to bring a criminal complaint to the AG for criminal prosecution, deny funding to NSA or threaten other Administration legislative priorities before going public and seeking the impeachment of the President.

However, obviously, no one on the Gang of 8 thought the NSA programs were illegal or simply thought that strictly enforcing FISA would be a bad idea if it crippled intelligence gathering against the enemy during a war.

Prosecutors have to decide whether to enforce questionable laws in exigent circumstances all the time. Congress was in such a position here.

enemy [EN-uh-mee] noun, plural -ies1. an adversary or opponent as so designated from time to time, whether publicly or otherwise, by the President or Vice President. 2. an armed foe; an opposing military force. 3. a hostile nation or state.

war [wawr] noun, verb, warred, war*ring, adjective 1. any activity, as so designated from time to time, whether publicly or otherwise, by the President or Vice President. 2. a conflict carried on by force of arms, between nations or between parties within a nation; warfare, as by land, sea, or air. 3. a state or period of conflict or active military operations.

Consider what has transpired since 9/11. Our President has used it as an opportunity to move America closer to the type of police state that exists in Saudi Arabia and the Middle East. America is now a country paralyzed by fear.

:::chuckle:::

Police state? My you have a vivid imagination. Exactly what freedoms or rights have you lost apart from having to wait longer in line at airports?

Moreover, I do not know anyone in America "paralyzed by fear" of al Qaeda. Indeed, it only took a majority of Americans about 5 years to tire of allowing others in the volunteer military to fight the enemy and want to bring them home.

Participants here have argued back and forth about the legality and Constitutionality of various programs. But, as has also been pointed out, we don't know if anything is true. And, at the heart of it, if We the People are to make informed decisions about our leadership and what they are doing, we have to know.

At this point, any of our enemies or rivals who do not know that we can tap electronic transmissions, spy on their movements, and follow the money are not only hiding in a cave, but also ignoring their own intelligence networks. IIRC, one of the reasons France gave for moving to Open Source for their government networks is the concern that our government has had Microsoft implant backdoor code for surveillance purposes.

In many cases, they can't help but use networks that we have compromised (but as one of the pre occupation war games showed, plain old bicycle messengers can avoid that). There are always alternatives.

But this gets off the topic. In no way am I advocating disclosing details. I am not advocating that we tell them which specific conversations we are monitoring.

However, we need to know what the programs are. We need to know the legal and constitutional justification for using them, especially if they can be targeted at citizens and residents here. Because without that knowledge, without that debate, what we have is a government by people who continually ask us to trust them, that what they are doing is for our own good, even though on numerous occasions, they have proven themselves unworthy of that trust (and, as you pointed out, this includes both sides of the aisle).

I stopped accepting "because I said so" as an argument when I was in fourth grade. I have never accepted it in politicians. Why do you, Bart? I know it makes it easier to go through life not making important decisions for yourself, but unless you question authority, eventually authority will question you (I did not speak out when they came for...).

Let's see and debate the proof, in public, before we accept "because I said so" again. Do you trust We, the People, enough for that, Bart? Or do you wish to give up our will for your hyperexaggerated fears? The US has lost more lives, money, and prestige to terror under the current regime than previous ones. Let's try a new course, where we are brave, and open, and we believe in ourselves.

Indeed, it only took a majority of Americans about 5 years to tire of allowing others in the volunteer military to fight the enemy and want to bring them home.

# posted by Bart DePalma : 12:06 PM

Actually, I'm pretty sure they grew tired of watching scum like you piss away a lot of lives and money for nothing.

And why, exactly, would one "tire of allowing others in the volunteer military to fight the enemy"? Heck, if there are people willing to go fight an enemy, what would I get tired of? And why would I want to bring them home if I did get tired?

I never said we were at war just with the people who committed that atrocity (similarly, the Japanese Navy was the only force who attacked Pearl Harbor) or that we are facing regular "troops". Is that your only definition of "war"? I also agree with Bart that America is a not country paralyzed by fear. YMMV.

Bartbuster and Russ:

As I said, YMMV.

Bart:

It is clear the DEMOCRATIC members of the Gang of 8 have "common sense" but didn't think that would be revealed to their anti-war base voters ; )

I also agree with Bart that America is a not country paralyzed by fear. YMMV.

It definitely was, but not so much any more. Hence the growing opposition to your idiotic war in Iraq. You still appear to be terrified, but the majority of Americans are no longer listening to you. YMMV.

As I hinted elsewhere, I think the maladministration strategy (in particular, the "GFY" attitude and continued dissembling of AG) may be an effort to "change the subject" and to frustrate any substantive investigation and uncovering of what actually went on. They're willing to put up Seedy Gonzales for a perjury charge (and even welcome it, as it changes the issues), because they can drag it out and stonewall, and even if he's convicted, they can do the "Scooter" and he'll get a nice AEI sinecure (or even a Preznitential Medal of Freedum to boot). But that's just the price they pay to sidetrack and frustrate any actual investigation (just as Scooter took a bullet for Cheney and possibly others so that we don't know who had the brilliant idea to out a CIA NOC).

One way to short-circuit the maladministration game plan (if Congress has the balls) is an "inherent contempt" citation and detention, for which the preznit can't pardon Gonzo, and which could be effected in short order.

[DoJ flacks]: "The May 17, 2006 letter from Director of National Intelligence Negroponte is consistent with the Attorney General’s testimony. The letter indicates that the March 10, 2004 meeting included a briefing on the activity we have called the “Terrorist Surveillance Program,” without indicating whether other intelligence activities were discussed."

IOW, the maladministration didn't brief Congress on the "other intelligence activities"? OK.... When are they going to do that?

Please cite the Constitutional provision and/or case law that holds the President cannot pardon "inherent contempt" of Congress. The President can indeed pardon "inherent contempt" of the Judicial branch.

Yeah, Arne, I read that already: "inherent contempt against an executivebranch officials does not appear to be subject to the President’s Pardon power . . ." which is CONGRESS's take (OLC, White House counsel, and the Solicitor General hold the differing view) and why I asked you for the case law on that point. Oh, that's right, there is none (but I'm sure our current Supreme Court would be more than happy to remedy that situation ; )

["Bart" DePalma]: The GOP is hitting back by calling for the reform of FISA. Apparently, our intelligence services are wasting their time and resources going to the FISC asking for warrants to conduct surveillance of calls between foreign terrorists where both parties are on foreign soil, but whose calls are routed through a US hub.

I consider the intercept geographic provision [50 USC § 1801(f)(2)] to be an anachronism in today's telecommunications world, and don't see any public interest in maintaining it. It should probably be repealed.

There might instead be reasonable grounds to belive that some (but not all) of the conversations intercepted involved al Qaeda agents, and as a result an individual conversation only might involve a member of al Qaeda.

So if we intercept all communications ever made, we have the highest probability to intercepting actual communications involving actual al Qaeda agents. Sound fair? Same goes for blanket search warrants (otherwise known as "general warrants"). A new regime awaits!

Now that it has been confirmed that the NYT did not reveal all the NSA operations to al Qaeda and everyone else and the operation which was the subject of the debate between DOJ and the WH was not disclosed, we are engaging in rank speculation to claim that we know whether this undisclosed operation was legal or illegal.

JOOC: Why would the N.Y. Times have been told by a whistleblower about the most innocuous and least controversial "operation" within the program. I'd think that any whistleblowers would be the most outraged and most willing to disclose the more contriversial elements.

You have to remember that many of the maladministration have history in the business world, where efficiency and cost effectiveness are the buzzwords--don't you want to save a few dollars or cut a few constitutional corners in order to more efficiently find terrorists?

(Of course, it must be said that those at the highest levels made their businesses profitable (if at all) through government contracts and connections; wait, maybe that was about efficiency, because why should you bother producing quality for value when you can just go straight to profit? Why tell the truth when people will believe lies?)

I assume, if you got all the way to page 31, that you also read the CRS recap (and ineffective rebuttal) to DOJ's argument that "inherent contempt" is unconstitutional where the President has asserted executive privilege (it's on CRS-27)?

Congress is not a potted plant. Congress could have obtained clearance for their own attorneys or demanded a briefing from the Executive on the legal basis on which it was proceeding. If the Executive balked, there is always the power over NSA's budget and several other pressure points.

I take it from the CRS report that there is no precedent on whether the President can pardon someone for inherent contempt. But if the President could "pardon" someone, not for committing the crime of contempt, but for an ongoing refusal to testify before Congress, then he would be able to do the same for a refusal to testify in court. (eg, Clinton could have ordered Susan McDougall released from prison when she was refusing to testify). Without having researched it, I am pretty confident that this is not the case. More precisely, I am sure that no court would accept that the President has the right to excuse people from giving evidence before it (indeed, they don't even accept that Presidents themselves have the right to refuse to give evidence, see Clinton v. Jones).

Nor am I aware that OLC or the executive branch has ever asserted that the pardon power reaches inherent contempt. Is anyone?

OLC has, of course, opined that inherent contempt would be unconstitutional as applied to an assertion of executive privilege. But that is a different issue.

That's right, MLS, Clinton could have ordered Susan McDougall released from prison when she was refusing to testify. Probably would have been imnpeached even quicker, then, so the political considerations are there for Bush as well. But, legally, there are few restrictions on the President's pardon power. After the commutation, the Judge in the Libby case analyzed the few cases that exist in that regard and concluded Bush did not abuse the pardon power -- I will try to look that up for you after lunch.

As an Iraqi resistance fighter I implore you to reconsider your belief that your police action in Iraq is helping matters. Unless you intend to stay forever to maintain peace, and I pray to Allah you are not so intending, America should leave now.

American forces and the instability they create provide an attractive situation for foreigners who wish to train against Americans formenting an endless cycle of violence, instability and fear.

America has levelled Iraqi cities and smashed Iraq's government. You have proven unable to be helpful in reconstructing a new one. Four years later, conditions in Iraq remain worse than under Saddam's regime and the US backed parliament is consumed with how to distribute oil income despite the absence of any social/state services.

The Iraqi people believe that America is here because she wants our oil, thus the presence of American troops acts as a constant source of violent friction.

You cannot help the Iraqi people. If you stay, it can only be because you intend to help yourselves.

I assume, if you got all the way to page 31, that you also read the CRS recap (and ineffective rebuttal) to DOJ's argument that "inherent contempt" is unconstitutional where the President has asserted executive privilege (it's on CRS-27)?

Actually, the mention of "inherent contempt" treatment in the OLD_84 opinion is on CRS-29, and as the CRS report states, this is just a "summary" footnote. The OLC-86 opinion (mentioned on CRS-30) just reiterates the older opinion, adding that it's unlikely that "inherent contempt" would be used and saying that the Supes might be more wary of Congress "exercising judicial authority". But seeing as the argument is that such "inherent contempt" is not a criminal matter, this is rather weak.

Hardly strong argument, and this from the Reagan OLC in response to the Burford affair (on which they caved).

The CRS is a recitation of authories and argument. Make of it what you will. It's your job to argue against them, if you disagree. That's what lawyers are supposed to do.

At the urging of top conservative bloggers, the White House set up a Friday morning conference call to promote its message on the subject of executive privilege, RAW STORY has found.

"The White House hosted a blogger conference call to discuss the issues surrounding the Bush administration's use of executive privilege in the probe of the firings of eight federal prosecutors," wrote Ed Morrissey, who produces the blog Captains Quarters. "The White House arranged the call based on a recommendation by this blog, in order to familiarize the blogosphere with the legal and political arguments on which the administration will rely to prevail in the upcoming fight regarding the contempt citations Congress seems likely to approve."

The White House did not immediately respond to queries about the conference call from RAW STORY.

Morrisey did not name any other participants in the call or identify the administration official who spoke to the assembled bloggers. But he showed that the message being delivered by the White House was short and to the point.

"The power to hire and fire federal prosecutors belongs exclusively to the executive branch," Morrissey wrote. "Congress has no particular oversight in these matters, and so the executive privilege claim is very compelling in this instance."

["Bart" DePalma]: The GOP is hitting back by calling for the reform of FISA. Apparently, our intelligence services are wasting their time and resources going to the FISC asking for warrants to conduct surveillance of calls between foreign terrorists where both parties are on foreign soil, but whose calls are routed through a US hub.

I consider the intercept geographic provision [50 USC § 1801(f)(2)] to be an anachronism in today's telecommunications world, and don't see any public interest in maintaining it. It should probably be repealed.

In that case, seriously, please contact your member of Congress to get them working on a FISA reform. Congress has known about these problems for years and has done nothing.

BTW, arne, since you are in one of your reasonable frames of mind, are there any other reforms of FISA with which you would agree?

For example, would you agree to remove calls entering this country from the FISA warrant requirement even if the end point is inside the US?

Would you change the probable cause requirement to allow surveillance of telephone numbers captured from al Qaeda but for which we do not have individualized probable cause that the owner is al Qaeda?

Would you change the probable cause requirement to allow surveillance of telephone calls where data mining has intercepted common jihadist language under the theory that the computer is not listening into the substance of the call until the jihadist language intercept triggers a recording with the jihadist language providing the probable cause for the recording?

Arne: I go back to an old hypothetical. Frank and Joe (to use names that avoid racial stereotyping) are middle level executives in al Qaeda working to advance terrorism around the world. Once a week, however, they call their mother in Yemen. Their mother is not a member of al Qaeda, and therefore does not fall under the permitted scope of "the program", but since nobody else in the US calls her every week, if the NSA begins to see phone calls to Mom coming once a week from Cleveland there is a pretty good chance that Frank or Joe are in the US and up to no good. Although Frank and Joe are valid targets under the program, the only way to trap them is to tack calls to Mom, who cannot be monitored under the current program. A prior program might have permitted intercepting calls to Mom. The difference, between only intercepting calls to members of al Qaeda and only intercepting calls to people (like relatives) that members of al Qaeda are likely to call, is a minor change to the program. Given the tiny amount that has been disclosed, it is possible that wording changes of this nature were the only issues under dispute.

Personally, I see no constitutional problem tracking calls to Mom, and a whole lot of other calls that have a high probability of catching al Qaeda agents. FISA was passed after we discovered that the Hoover FBI used "national security" to illegally tap the phones of political targets, and though the law ended up covering a lot of other unintended territory I don't see the Fourth Amendment extending to the privacy of some woman in Yemen who raised a couple of really bad kids. As long as we are about 6000 miles away from the kind of abuse that caused FISA to be passed, arguments over particular message filters seem unimportant.

BTW, arne, since you are in one of your reasonable frames of mind, ...

I'm always reasonable. You, OTOH, live on planet Betelgeuse-III(a), it seems. The only excuse for misciting existing law and seeing "holding" that don't exist on planet Earth.

... are there any other reforms of FISA with which you would agree?

Yes. I don't like secrecy, and would be open to changes that make as transparent as possibly all workings of the FISA court (including the release, as is done in Article III courts, of records and decisions, after a sufficient period of time to make sure they don't interfere with ongoing investigations).

For example, would you agree to remove calls entering this country from the FISA warrant requirement even if the end point is inside the US?

No. I believe that the "target" qualifier is the proper one, and I'd note that this provision [50 USC § 1801(f)(1)] makes no distinction between calls originated or terminated [other 'distinctions' also made a bit irrelevant in today's telecommunications millieu] in the United States.

Would you change the probable cause requirement to allow surveillance of telephone numbers captured from al Qaeda but for which we do not have individualized probable cause that the owner is al Qaeda?

No.

Would you change the probable cause requirement to allow surveillance of telephone calls where data mining has intercepted common jihadist language under the theory that the computer is not listening into the substance of the call until the jihadist language intercept triggers a recording with the jihadist language providing the probable cause for the recording?

It appears that Abu Gonzalez may be tried for perjury, obstruction of justice and false and misleading statements to Congress.

Taylor, Goodling and Von Spakovsky have all admitted to what may be Hatch Act Violations, both criminal and civil in addition to civil rights violations both in hiring and selective prosecution.

Can conspiracy be far behind? I think not.

Finally, we come to a willful breach of the Herr Busch's duty to see that the laws of the land are faithfully executed. Currently, he claims he was uninvolved in the political decision to fire these non-loyal Bushies, but it's still covered by privilege, unless congress is willing to take a secret untranscribed spinfest as reliable.

For evidence, I would direct you to open your golum like eyes read Conyer's report.

Laws have to be of a general applicability. Just because you can think of some instance, taken in isolation, where you think there's a compelling reason for a formulation of the law doesn't mean that law is a good idea. It must be applicable (and just) in all (or as close to "all" as possible) applications.

First of all, Bartbuster, I didn't ask this hypo and the actual question was whether there was any Constitutional problem. Second, if you can't see how Mom in Yemen -- who never in her life received a phone call from the U.S. -- suddenly starts getting one every Sunday afternoon from Cleveland, is every the tiniest bit of evidence that her sons are in the U.S., then I don't know what would convince you.

Once a week, however, they call their mother in Yemen. Their mother is not a member of al Qaeda, and therefore does not fall under the permitted scope of "the program",... [...] Although Frank and Joe are valid targets under the program, the only way to trap them is to tack calls to Mom, who cannot be monitored under the current program.

Second, if you can't see how Mom in Yemen -- who never in her life received a phone call from the U.S. -- suddenly starts getting one every Sunday afternoon from Cleveland, is every the tiniest bit of evidence that her sons are in the U.S., then I don't know what would convince you.

# posted by Charles : 4:51 PM

That was obvious. The part I don't see is why the NSA can't monitor her phone. She is outside the US. Or was that the hypothetical part?

Since FISA [50 USC § 1802 (a)(1)(A)] specifically limits warrantless surveillance to "foreign powers" [as defined by 50 USC §1801(a)(1), (2), (3) and omits the definitions contained in 50 U.S.C. §1801(a) (4),(5),(6)] the act does not authorize the use of warrantless surveillance on: groups engaged in international terrorism or activities in preparation therefore; foreign-based political organizations, not substantially composed of United States persons; entities that are directed and controlled by a foreign government or governments; or "MOM" in Howard's hypo above.

Since FISA [50 USC § 1802 (a)(1)(A)] specifically limits warrantless surveillance to "foreign powers" [as defined by 50 USC §1801(a)(1), (2), (3) and omits the definitions contained in 50 U.S.C. §1801(a) (4),(5),(6)] the act does not authorize the use of warrantless surveillance on: groups engaged in international terrorism or activities in preparation therefore; foreign-based political organizations, not substantially composed of United States persons; entities that are directed and controlled by a foreign government or governments; or "MOM" in Howard's hypo above.

Irrelevant. Because the procedures of 50 USC § 1804 are only required for "electronic surveillance[s]" as defined in 50 USC § 1801(f), there is no need for the § 1802 'backdoor'. The relevant part of the law is whether a FISA court order is required at all; the § 1802 exceptions to the FISA court order requirement for such type surveillances notwithstanding.

Seeing as no warrant and no FISA court order is required to tap her phone regardless of the provisions of § 1802, no problem, eh?

If you're going to spout statute, try to be a little more edjoomacated in what you cite.

She is NOT a "foreign power" (see cites, above). Last year, Judge Richard A. Posner wrote a very informed Op Ed that FISA “retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for DETECTING terrorists. [FISA] requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist . . ." (Emphasis Added)

So, Arne, you are claiming that FISA allows a Cleveland phone call to Yemen to be tapped without a warrant? Gee, I guess I have been reading the statute all wrong then for all these years. Thank you so much for edjoomacating me : )

The post to which you refer was directed at "Bart"'s -- in this thread -- smear against those who oppose the illegal invasion and occupation of Iraq -- Bushit's "war" -- as being, therefore, "anti military". I'm fed up with being lied against by anti-American trash/chickenhawks who clasim to have a monopoly on patriotism while simultaneously having no regard whatsoever for truth and rule of law -- and worse, as I said.

I would say the Bush Administration has handed Bin Laden a greater victory than he could have ever hoped for.

# posted by Garth : 11:34 AM

Bushit certainly -- and voluntarily -- handed bin Laden a moral victory with Abu Ghraib. And both "Bart" and "Charles" approve of every bit of that.. Including the fact that in so doing, Bushit undermined national security by increasing the number of enemies of the US.

When will "Bart" and Charles wake up and realize that they are spewing -- and defending -- views which are not only terrorist in themselves, but defending the very views and actions of bin Laden/al Qaeda?

If Charles thinks there's any kind of legal reasoning there worth quoting, he ought to simply come out with it.

You know, because warrants require that probable cause be shown in advance that evidence of a crime exists at the place to be searched, there's undoubtedly lots of criminals that go free for lack of evidence (or even identification of who amongst us are criminals) just because we can't ransack houses willy-nilly looking for evidence of crimes. Oh, the humanity. C'est la vie....

So, Arne, you are claiming that FISA allows a Cleveland phone call to Yemen to be tapped without a warrant?

Yes, Mr. van Winkle. Under the provisions of FISA (50 USC &sect 1801(f)(1), as long as &sect 1801(f)(2) doesn't also apply), this is not covered by FISA unless the "target" is a "United States person". I shredded that piece of maladministration propaganda years ago, IIRC.

First, does FISA allow the NSA to intercept calls between the US and Mom (in Yemen) without a warrant? Yes, but only if the point at which the communication is intercepted is outside the US. If they want to collect the conversation inside the US, as critics of the TSP have suggested was the case with "this program", then a FISA warrant is required.

However, with regard to "this program" I quote only from the characterization in the DOJ press release of the original post: "targeting for interception international communications coming into or going out of the United States where the NSA has reasonable grounds to believe that a party to the communication is an agent or member of al Qaeda or an affiliated terrorist organization." If we can assume that all calls from the US to Mom involve her sons, then this falls under the program. However, suppose that Mom gets 99 calls a week from people trying to convince her sons to consolodate their student loans, and only one call per week from one of the kids.

An intelligence program should allow intercepts if there is a high probability that the entire stream will yield some valid intelligence information. However, if instead of looking at Mom's entire weekly stream of calls from the US (with a 100% probability of getting one call from a son when he is here planning an attack) you require each individual call to have "an agent or member of al Qaeda" then only 1% of the calls match that criteria.

Believing correctly that he is being followed, a building supervisor on Sunday enters an office building carrying a package for which there is probable cause to believe it contains cocaine. Five minutes later he leaves the building without the package. He has a master key, and time to hide the package in any office. There are 100 offices. If you can get a warrant for the entire building, then there is a 100% chance you will find the package. If you have to get 100 warrants for each office, then any given office has only a 1% chance of containing the package. Is 1% enough "probable" to be probable cause any more? Now suppose that instead of cocaine he was carrying a suitcase nuke that will, after an hour, blow up and kill a million people? Doesn't that change the calculus of the search? If it does, then the criteria are no longer based just on "probable" any more.

The problem with FISA is that it applies criminal justice thinking to an intelligence problem. FISA requires that the monitored person be a knowing agent of a foreign power, when a rational law properly drawn would recognize that important messages can be forwarded through "dead drop" intermediaries who have no knowlege of what they are doing. If there is reason to believe that a message contains information generated by and destined for al Qaeda, there should be no requirement that either intermediary on the two sides of the international communications themselves be a knowing al Qaeda agent. That is like allowing a package addressed to Bin Laden to be sent on to its destination unless there is reason to belive that the Fedex driver carrying it is himself a member of al Qaeda. The program seems to be using the wrong criteria, and the people responsible for creating this wrong criteria appear to be the DOJ lawyers whose objections at some time with regard to some program, are the subject of this entire narrative.

Rather than being brave professionals standing up for individual rights, when the history is written we may find that the DOJ objectors were simply people brainwashed by 1L and unable to think any more about new subjects outside the normal criminal justice framework. If the only thing you know how to do any more is to swing a hammer, then everything starts to look like a nail.

You are aware that the 19 highjackers were "United States persons" until their visa's expired, right?

No. I was unaware of that (*mumble*"an alien lawfully admitted for permanent residence"*mumble*). Do tell. Then explain WTF difference that makes to your previous misstatements of obvious fact. Then STFU for a while and let the grownups talk.

The problem with FISA is that it applies criminal justice thinking to an intelligence problem.

The problem with your desired revisions of FISA is that it allows the types of taps that provide no resolution of the "intelligence problem".

Look, Howard, I have no problems with snooping in the U.S.; in fact it's a subject that I'm very familiar with from a technical standpoint. All I'm saying is: "You think you have good reason to snoop? Get a warrant!" As various people have pointed out, FISA court order applications are almost invariably granted.

FISA requires that the monitored person be a knowing agent of a foreign power, when a rational law properly drawn would recognize that important messages can be forwarded through "dead drop" intermediaries who have no knowlege of what they are doing....

What part of "We could care less what Mom does" are you not understanding? We want to know where and what SONS IN THE U.S. are up to. I thought Atta was in the country on a permanent resident visa, but I will have to double-check that. For purposes of Howard's hypothetical, assume Frank and Joe are "United States persons" and the targets.

@Balkinites: An example of why you should think twice before spanking our trolls too hard.

I saw that article too. My sweetie thinks I ought to go anonymous, in part because of such (and I'm not going to point this article out to her). But that's not my style, and I won't let wingnuts deter me from pointing out nonsense. The spankees have a ready remedy to prevent further psychic pain that I heartily endorse.

Sorry to interrupt all the off-topic squabbling, but anyone interested in the actual matter at hand should read this new post by Anonymous Liberal.

Reviewing the record of both Gonzales' Feb. 6, 2006, testimony in conjunction with President Bush's own words, A.L. demonstrates the evidence that "the program that the president has confirmed" was not limited to its incarnation as modified after March 2006.

We know exactly what Jay Rockefeller thought after his July 2003 meeting -- the last he had, according to Negroponte's calendar, before the March 10 2004 meeting.

He handwrote a letter to Cheney and kept a copy in his safe. He compared it to Poindexter's Total Information Awareness. As others have noted, Rockefeller could not discuss the technical or legal elements of what was being done.

Illegal though the confirmed surveillance may be, it doesn't approach the definition of TIA. However, the TIA model -- mass automated filtering of voice and data communications, combined with datamining -- would serve to facilitate the kind of discrete acknowledged surveillance.

Anyway, I'm sure that the Bartman would have applauded Rockefeller, had he chosen to make public details that he wasn't allowed to share with his own staff.

The false statement must be material to the proceedings. A false statement is material if it has "a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed." Kungys v. United States, 485 U.S. 759, 770 (1988)(denaturalization proceeding).

The Senate Justice Committee was not a decision making body making a decision when it was inquiring whether there was any dissent in the Administration concerning the TSP.

The subject of the hearing was allegedly an investigation of the purely executive decision of the President to fire his political appointee subordinates, which does not involve any legislative decision.

The Justice Committee has no jurisdiction over the operation of intelligence matters, so they could not claim that they were inquiring about the opinions of DOJ lawyers for the purpose of drafting future legislation concerning the NSA.

The existence or non existence of a legal disagreement at DOJ is not an element of a criminal offense.

Rather, this TSP dissent line of inquiry was a partisan witch hunt by Dems looking for dirt to embarrass the President.

While I have been skeptical of the emphasis on Gonzales-as-liar, since it tends to overshadow the more serious underlying issues of illegal surveillance, I am more convinced that the move to prosecute his dissembling has legs.

The thing that, on the margin, convinces me of this is Anonymous Liberal's excellent analysis. Before he connected the dots in the record, I thought Gonzales had a shot at parrying the charges with his finely parsed obfuscations about "the program that the president has confirmed." I no longer think so.

In addition, FBI Director Mueller's House Judiciary testimony was very damaging to the attorney general.

A.L. is calling for an impeachment proceeding against Gonzales. I think the demand for a special counsel should be pursued first. I really don't see how Paul Clement can dismiss out of hand the evidence of Gonzales' false and/or misleading testimony. Leahy has not yet endorsed his Democratic colleagues' request to Clement, and is awaiting Gonzales' clarification of his most recent Senate Judiciary appearance. Specter, predictably after his plane ride on Air Force One, opposes a special counsel, while pretending to be an advocate for the truth.

The smoking-gun passages on which A.L. focuses were in the Feb. 6, 2006, testimony, which was not under oath. So perjury would not obtain there, but a felony charge of lying to or misleading Congress could. To whatever extent that Gonzales compounded the deception in his sworn testimony this week, allegations of perjury might be relevant.

Notably, the Senate Judiciary subpoena for the legal documents surrounding the domestic surveillance program -- documents relevant both to the Gonzales testimony and the conduct of the underlying program -- is still unanswered, and Fred Fielding has been given extended time to reply. Formally, no privilege has yet been asserted with respect to these documents, although I will be surprised if they are produced.

I continue to argue that a special counsel also should have a mandate to pursue underlying violations of FISA, etc. I also continue to fear that no such prosecution will happen.

A special prosecutor would suit the Dems' purpose of making this look like a legitimate prosecutorial proceeding.

The President should tell the Senate Dems in no uncertain terms that the Executive branch will not assist in this partisan political theater and put the ball back in the Dems court to offer evidence during an impeachment and look foolish or back down and look foolish.

Moreover, the President should offer legislation to reform FISA and force the Dems to confront the choice between intelligence gathering against al Qaeda which most of them privately support and the demands to ham string that intelligence gathering from their base along the lines of what arne posted earlier.

I will give the House Dems some kudos, though, for passing a pretty good anti terror bill with heavy veto proof bipartisan support. I wonder if the Senate can make any time out from witch hunts to actually make an attempt at governing?

On Monday the President will release a statement explaining this whole situtation. In intelligence matters, everything is identifed by a codename. Imagine a baseball game. "A Program" is on first, "The Program" is on second, "That Program" is on third, and "The Program Disclosed by the President" is up to bat. The pitcher throws the ball to the second baseman and there is a very close call about whether the runner touched the bag before being tagged. This controvery, however, does not involve "A Program", "That Program", or "The Program Disclosed by the President". In fact, it is safe to say that nobody in the DOJ has any dispute about any of these three players. The only question is about the runner on second base. In fact, this new theory will be referred to as the "Who's on Second" theory.

I will observe first that you immediately retreated from the merits of Gonzales's lying, and changed the subject to political bravado.

Not being a "Dem," I have less skin in the game than partisans such as you. But I can't help remembering the Saturday Night Massacre. Nixon had the constitutional authority to order Archibald Cox to be fired, just as Bush today could order Paul Clement not to name a special counsel. No doubt Republican candidates, eager for an electoral replay of 1974 and 1976 combined, will be thrilled to tie themselves next year to the banner of protecting Alberto Gonzales from justice.

As for the FISA bill, that is a policy matter wholly unrelated. You are transparently following the talking points by trying to change the subject, but there is no reason for Democrats to be bullied into acting too quickly on policy changes. The only nexus to "terrorists" the administration can even name -- the possibility that foreign-to-foreign communications get caught in FISA's net -- can easily be remedied by a one-line amendment, and is not an argument for the core rewrite of FISA under deliberate consideration.

As I recall in late 2006, there were even more stark issues at stake with regard to surveillance, detainee treatement, etc. You and the GOP played the soft-on-terror charge strongly during the campaign. The result: Not a single Democratic incumbent was defeated.

On Monday the President will release a statement explaining this whole situtation. In intelligence matters, everything is identifed by a codename. Imagine a baseball game. "A Program" is on first, "The Program" is on second, "That Program" is on third, and "The Program Disclosed by the President" is up to bat. The pitcher throws the ball to the second baseman and there is a very close call about whether the runner touched the bag before being tagged. This controvery, however, does not involve "A Program", "That Program", or "The Program Disclosed by the President". In fact, it is safe to say that nobody in the DOJ has any dispute about any of these three players. The only question is about the runner on second base. In fact, this new theory will be referred to as the "Who's on Second" theory.

Where the perjury claim against Gonzales falls apart is on the element of materiality.

Section 1748 of the DOJ criminal resource manual is instructive in this regard, beginning with the following quote from the Supreme Court:

The false statement must be material to the proceedings. A false statement is material if it has "a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed." Kungys v. United States, 485 U.S. 759, 770 (1988)(denaturalization proceeding).

The Senate Justice Committee was not a decision making body making a decision when it was inquiring whether there was any dissent in the Administration concerning the TSP.

"Bart" is right that >Kungys is the most-cited standard for "material" (and so even for perjury cases, even though Kungys was an immigration case concerning "materiality" under immigration law [8 U.S.C. § 1101(f)(6)]).

As I and others have pointed out for quite some time, this standard for "materiality" was pretty much ignored by Starr and the Republicans in the House in their impeachment articles against Clinton (the alleged "perjury" WRT the Lewinsky deposition arguably lacked materiality insofar as this testimony may well have been inadmissible in court under the FRE, and in the end, the judge decided to exclude this testimony from trial; this fact may in part have led to this impeachment article failing even in the House).

OTOH, when Congress is investigating for purposes of making or revisiting laws (such as FISA, or the "Patriot" act provisions for unconfirmed appointments of USAs), they are accorded broad leeway in theri investigations, and lying to them is quite arguably "material" under the Kungys standard.

["Bart"]: "The Senate Justice Committee was not a decision making body..."?!?!? That was perhaps true until January, 2007, but there's a new game in town. ;-)

The subject of the hearing was allegedly an investigation of the purely executive decision of the President to fire his political appointee subordinates, which does not involve any legislative decision.

If this was true, the only question of fact would be whether they were fired (and even that seems to be a difficult matter for Abu Gonzales to come truthful about). But contrary to "Bart"'s delusions (and the Mighty Wurlitzer RW 'spin'), the reasons for termination do in fact implicate various laws concerning executive staffing and performance of job functions (and this has been pointed out to "Bart" numerous times, although he ignores it and hasn't responded to the arguments made there). Congress is fully justified in finding out the circumstances of the firings.